Toymakers Beware—If You Make Miniature Custom Figures That Look TOO Good—and Then Sell Them TOO Publicly—You’d Better be Prepared to Face an All-Too-Costly Copyright Infringement Lawsuit

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The likeness is unmistakable— That pose. That expression. That haircut. That weaponry. THAT is Conan the Barbarian—and we all know it. Ricardo Jove Sanchez’s mini-sculpt figurine was clearly modeled after Robert E. Howard’s iconic character and Frank Frazetta’s iconic paintings. Submitted as prima facie evidence in court, this screenshot of a Facebook post made under Sanchez’s pseudonym “Rykar Jové” provided the judge with a definitive and unmistakable side-by-side comparison. Click to enlarge.

Are YOU a custom figure “fraudster?”

Let’s hope not. It might net you some tempting income in the short term, but it could also cost you a pretty penny in the future. For example, a Brooklyn, NY judge recently penalized “professional freelance sculptor” Ricardo Jove Sanchez (of Spain) with $21,000 worth of fines and liabilities. Sanchez’s transgressions? He had sculpted multiple miniature (3″ tall) figurines based upon Robert E. Howard Properties’ Conan the Barbarian characters—and the paintings of Frank Frazetta—and his actions were found to be “liable under trademark infringement laws.” According to the article recently published in the New York Post (HERE) and as penned by reporter Emily Saul:

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Emily Saul, New York Post (Photo: New York Post)

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“A Spanish man has been ordered to cough up $21,000 for hawking unauthorized reproductions of action figures like Conan the Barbarian, Kull and El Borak over the internet. Brooklyn federal Judge Frederic Block found Ricardo Jove Sanchez liable under trademark infringement laws, saying he sold the collectibles despite knowing their likenesses were owned by Conan Properties International LLC, and Robert E. Howard Properties Inc. Sanchez peddled the figures of Conan, Kull, El Borak, Soloman Kane, Ironhand, Bran Mak Morn, and Dark Agnes over Facebook and Kickstarter for a three-year period, the companies alleged. Yet, when he was told to stop, the fraudster simply changed the names of his replicas and continued business as usual, according to Block.

‘For example, he changed ‘Conan the Barbarian’ to ‘The Barbarian’ and ‘Dark Agnes’ to ‘Swordswoman’ ” in his ads, the papers say. Block ordered Sanchez to cough up $3,000 per character he ripped off, plus additional damages. He is also permanently barred from making or selling any figures based on Howard’s works in the future. Howard, who died in 1936, wrote a series of popular pulp fiction works during the 1930s. Sanchez couldn’t be reached for comment.”


hom·age

(h)ämij/

noun

definition: a special honor or respect shown publicly.


How “honoring” your favorite characters can get you in trouble with the law

As most 1:6 scalers well know, a sort of character-infringement “light” has been going on at GIjOE shows around the world for a quite a long time now. This is not the work of major toy companies ripping each other off. No, this activity resides within the realm—and purview—of well-intentioned individuals. And it’s not a greed-driven pursuit, either. Quite the contrary, most of the time, any infringement being perpetrated is because of an individuals’ LOVE for a certain brand or character. His (or her) goal is RARELY to take money away from a brand’s rightful copyright holder(s). Rather, it is (they feel) their way of remembering, honoring, and/or THANKING the creators for something that has provided them with a lifetime of wonderful memories. But—however noble or sentimental their reasoning may be—those people are still—breaking the law. And that’s wrong.

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Too Close for Legal Comfort— With minor tweaks, these figures could’ve easily been declared completely original concepts, but then their sales would likely have dropped dramatically. Sanchez had received a warning about the trademarked names and replaced them with more generic ones (see above). Unfortunately, that wasn’t enough to satisfy the attorneys of Robert E. Howard, Inc. and a lawsuit was soon filed. Copyright laws exist to protect creators. (Photo: Ricardo Jove Sanchez) Click to enlarge.

You’ll see such honorific—and yet illegal—products being sold ALL THE TIME at toy shows—as vendors blatantly ply goods bearing likenesses, logos, illustrations, photos and other copyrighted material that is clearly not theirs to reproduce. Most of the individuals doing so have ZERO official approval to make whatever it is they’re making—or to sell whatever it is they’re selling. And yet—

Toy Shows Remain “Islands of Opportunity” for Many

For those involved in the creation and sale of any copyright-infringing product, staying underneath the legal “radar” means that they must produce them in only VERY limited quantities, preferably as one-of-a-kinds, or sell (or trade) them purely on a “collector to collector” bartering basis. Toys shows are ideal for this. Much like open-air flea markets, they provide sellers (and buyers) with an easy opportunity to get together and transact. Heck, with major manufacturers currently “dropping the ball” toy-production-wise, some of the coolest products you can find are the handmade creations being sold at toy shows. We’re not attorneys, but it appears to us that Sanchez’s internet-based sales on both Facebook and Kickstarter were just TOO public, TOO well-received and TOO successful for the Robert E. Howard folks to overlook. Hopefully, the recent (expensive) outcome of Sanchez’s case will serve as an instructive wake-up call to others pursuing similar “business.”

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High Quality Honorifics— Sanchez’s work is superb. This pic shows six more of his sculpted (and unofficial) miniature creations. Remember, whenever you create an original work—it (and you) are BOTH protected by copyright law. (Photo: Ricardo Jove Sanchez) Click to enlarge.

Bottom Line: Do YOU make your own “kitbashed” or custom action figures? Equipment? Packaging? Clothing? Are you aware of all of the legal pitfalls and potential financial penalties resulting from copyright infringement? Don’t get us wrong. You’re perfectly free to show off (and sell) all of your homemade creations with well-deserved pride. The First Amendment of the U.S. Constitution and U.S. copyright law protects you and ALL of your own unique artistic creations. BUT—if any of your work contains near (or exact) likenesses of any other copyrighted characters, logos, or well-known individuals (living or dead), then that MAY be a problem—especially if you ever decide to sell them publicly, online or in very large quantities. Any questions? We suggest you pay for an hour or so of time with your own, trusted attorney. That minor cost up front may save you a great deal MORE later on. View court documents from Sanchez’s case HERE.

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2 thoughts on “Toymakers Beware—If You Make Miniature Custom Figures That Look TOO Good—and Then Sell Them TOO Publicly—You’d Better be Prepared to Face an All-Too-Costly Copyright Infringement Lawsuit

  1. Gary Stair says:

    Very interesting read, Mark. With the advent of 3D printing, any old vintage toys, toy parts, custom reproductions or even new toys which have not been marketed yet, could begin to vanish from the mainstream IF considered too risky to undertake. I would also highlight with Toys R’ Us gone as well as Mattel and Hasbro facing issues of their own… What is a toyMaker, kitbasher or toy collector to do? I, for one, will keep an eye on this, as reproduction parts, replacement parts, or even add-on parts seem to be very much in-demand these days—and 3D printing helps to fill this growing void. Stay Tuned. MUCH more to come!

  2. kneonknight says:

    Honestly, I don’t understand how the Howard estate can be suing over the likenesses, as most appear to be based off the work of Frank Frazetta. The names, yes. The images? Not so sure unless those images are also owned by the Howard estate. But Mr. Sanchez undoubtedly has enough legal issues without me sticking in my oar to roil the already troubled waters.

    My understanding is that if you make a likeness of a copyrighted work for your own personal use and enjoyment, you’re on pretty safe ground, but attempting material gain from such activities will land you in hot water. I can’t imagine every single bit of fan art being realistically prosecuted, on the other hand, I am a U.S. citizen and our country does seem to have a love of lawsuits, so who knows?

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